Tag Archives: DMCA

You can’t make this up. Law 360 is reporting that the International Trade Commission (ITC) has been denied authority over digital goods.

The Federal Circuit said Thursday that it wouldn’t reconsider its decision that the International Trade Commission lacks the authority to block the import of digital files, drawing a lengthy dissent from one of its judges.

Keep in mind, the same people now opposed to the ITC having this authority are the same who argued in favor of the the ITC doing so as an alternative to SOPA called the Open Act.

When advocating for the OPEN Act as a good alternative to SOPA and the PROTECT IP Act, the bill’s sponsors touted the ITC as being a great venue for tackling the problems of foreign rogue sites. Among the claimed virtues were its vast experience, transparency, due process protection, consistency, and independence:

For well over 80 years, the independent International Trade Commission (ITC) has been the venue by which U.S. rightsholders have obtained relief from unfair imports, such as those that violate intellectual property rights. Under Section 337 of the Tariff Act of 1930 – which governs how the ITC investigates rightsholders’ request for relief – the agency already employs a transparent process that gives parties to the investigation, and third party interests, a chance to be heard. The ITC’s process and work is highly regarded as independent and free from political influence and the department already has a well recognized expertise in intellectual property and trade law that could be expanded to the import of digital goods.

The Commission already employs important safeguards to ensure that rightsholders do not abuse their right to request a Commission investigation and the Commission may self-initiate investigations. Keeping them in charge of determining whether unfair imports – like those that violate intellectual property rights – [sic] would ensure consistent enforcement of Intellectual Property rights and trade law.

Some of the groups now arguing that the ITC shouldn’t have jurisdiction over digital goods openly supported the OPEN Act. Back in late 2011, the EFF stated that it was “glad to learn that a bipartisan group of congressional representatives has come together to formulate a real alternative, called the OPEN Act.” The EFF liked the bill because the “ITC’s process . . . is transparent, quick, and effective” and “both parties would have the opportunity to participate and the record would be public.” It emphasized how the “process would include many important due process protections, such as effective notice to the site of the complaint and ensuing investigation.”

Google likewise thought that giving the ITC jurisdiction over digital goods was a great idea. In a letter posted to its blog in early 2012, Google claimed that “there are better ways to address piracy than to ask U.S. companies to censor the Internet,” and it explicitly stated that it “supports alternative approaches like the OPEN Act.” Google also signed onto a letter promoting the virtues of the ITC: “This approach targets foreign rogue sites without inflicting collateral damage on legitimate, law-abiding U.S. Internet companies by bringing well-established International trade remedies to bear on this problem.”

Musicians, know who your friends are and are not. Here is another example of big tech money, corporate astroturf, attempting to remove your rights. In the last hours of the submissions to the Copyright Office for comments on the DMCA a webform was introduced.

Note the fear-inducing reference to “robots”–“robots” must refer to the tools that Google itself gives to big companies to automate sending DMCA notices to Google for infringing links. So by definition, “corporations” use Google’s own “robots” at Google’s request. 80 million infringing links this month alone! (And remember, the Google “transparency report” does not include DMCA notices sent to YouTube, Blogger or any other Google property, it just covers Google search.) EEP! ROBOTS! DON’T BREAK THE INTERNET!

This letter is exceptionally misleading because Google doesn’t allow independent artists to use these tools. That means even the handful of artists who can monitor Google search 24/7 have to send manual notices. So what the astroturf group is really complaining about is that EVERYONE should have to send notices manually which would increase the amount of time that Google has to profit from links to infringing content by data profiling or advertising sold on pirate sites.

This webform did not even verify if those sending the automated letter to the US Copyright Office were actually US Residents or machines…or made an intelligible comment on the questions the Copyright Office asked for public comment. So, we had some fun with it, see bel0w.

David Newhoff at The Illusion Of More has an excellent piece looking much deeper at how these corporations and their funded organizations are working aggressively to take away the protections granted to individual creators in copyright.

“This gray market is unsustainable. If consumers can legally listen to free on-demand music permanently without converting to paying models, the value of music will continue to spiral downward to the benefit of no one.”

There is no turning back from this admission.

It’s funny how in years past so many in the music and tech communities could not and would not admit to this simple fundamental truth often telling musicians the true value of their platform was “exposure” so artists could “tour and sell t-shirts”. Well it now looks like the wheels have been run off that nonsense for good.

What would be really great is to see Pandora join the fight with artists against Ad-Funded Piracy. Pandora, Spotify, YouTube and every other Ad-Supported music platform must be aware of the fact that the downward pressure from these infringing pirate sites not only diminishes the value of music, but also the value of advertising on legitimate and licensed paltforms.

WINDOWING WORKS. ASK ADELE, TAYLOR SWIFT AND THE MOVIE BUSINESS.

Taylor Swift, Adele, Beyonce, Prince, Coldplay, The Black Keys, Thom Yorke and other artists have proved that Hits Don’t Need Spotify, but rather Spotify Needs Hits. The Wall Street Journal reports that Spotify is caving in on windowing.

Now, the service is caving in, according to people familiar with the matter.

In private talks, Spotify has told music executives that it is considering allowing some artists to start releasing albums only to its 20 million-plus subscribers, who pay $10 a month, while withholding the music temporarily from its 80 million free users. The company is only interested in withholding albums that can be kept off of other free music sites, such as Alphabet Inc.’s YouTube, for the same amount of time, one of these people said.

There is no turning back from this admission.

This means that Spotify has admitted that it is NOT a discovery medium, it is a retail outlet. Spotify is the digital cut-out bin offering the lowest amount of value to artists. The big problem for Spotify now is who decides who is a lessor or greater artist? Who is going to have that conversation with artists and managers that they are a lessor artist and not worthy of Spotify’s stamp of approval to only be streamed to paying subscribers? Ironically, but predictably the new boss is worse than the old boss.

According to a recent report from Ogilvy and Tubular Labs, of the 1000 most popular Facebook videos of Q1 2015, 725 were stolen re-uploads. Just these 725 “freebooted” videos were responsible for around 17 BILLION views last quarter. This is not insignificant, it’s the vast majority of Facebook’s high volume traffic.

There is no turning back from this admission.

Every argument that has been used against musicians, filmmakers and other creators for using the DMCA to protect their work suddenly takes on new dimensions when the tables are turned.

THE DMCA IS NOT A “LICENSE” FOR INFRINGEMENT, COX LOSES SAFE HARBOR IN JURY VERDICT.

Perhaps the single greatest ruling of the year involves Cox Communications losing it’s safe harbor under the DMCA. Digital Music News reports on the jury verdict.

Ultimately, the court found the situation to be more complicated than that, with Cox now ruled guilty of both contributory and willful contributory copyright infringement by a federal jury. The jury award is $25 million, though that probably represents a small prelude to damages that could ultimately push into the hundreds of millions.

There is no turning back from this verdict.

For those of you keeping score at home it is the DMCA abuse that has been used as a shield against copyright infringement liability by the internet and web/tech communities. Many businesses including many ISP’s and content hosting platforms such as YouTube have used the DMCA to build massively profitable businesses that are largely comprised of infringing works, otherwise known as User Pirated Content. That may be about to change thanks to this ruling.

We have centuries of rule of law for civilized societies that respect and protect individual creators rights in the authorship of their work. The United Nations Universal Declaration of Human Rights, Article 27, part 2 states “Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

The greatest irony here is that Sunde set up The Pirate Bay as an attack on capitalism, but he started by attacking artist’s and creator’s moral rights firsts. The paradox of “pirate logic” expands when one recognizes that The Pirate Bay was said to be making over four million dollars year. Yeah, that’s the way to fight capitalism, attack the ability for artists to survive and pocket four million a year. We couldn’t make this up if we tried.

YouTube will pay copyright court costs for a few users–not because it’s right–but to protect Google’s bottom line

According to a story in today’s NY Times, the folks at YouTube are ready to pony up cash to support some of its users “fair use” claims in court.

“YouTube said on Thursday that it would pick up the legal costs of a handful of video creators that the company thinks are the targets of unfair takedown demands. It said the creators it chose legally use third-party content under “fair use” provisions carved out for commentary, criticism, news and parody.”

You’ve probably read a lot about “fair use” lately. It’s the Electronic Frontier Foundation’s mantra and if the folks there had their way, pretty much everything and anything would be considered “fair use.” Fair use an important legal doctrine and when applied properly (criticism, comment, news reporting, teaching, scholarship, or research) is not an infringement of copyright. However, these days, too often is used as a disingenuous defense for copyright theft.

Who Benefits from the DMCA?
The ISPs (Internet Service Providers) who are facilitating all this trafficking of stolen material are completely off the hook because of the safe harbor provision. Imagine a company that helped people tap into the water system of your town. On the surface, they are simply selling plumbing and faucets. “Hey, we’re not making money from stealing water,” they might say, “we’re making money on sink fixtures; we can’t help it if the water people run through those fixtures is stolen.”

Yet that is essentially what Title II of the DMCA allows to occur, but with intellectual property instead of water. And by letting corporations profit from services that promote the stealing of copyrights, we send a powerful message to everyone: theft is acceptable if you can get a law passed that exempts you from prosecution.

So screwed up is Title II of the DMCA that even a corporate tool like Kravets owns up to the problem. He writes that the safe harbor provision “…provides ISPs, hosting companies and interactive services near blanket immunity for the intellectual property violations of their users.” In other words, pilfering from the pockets of songwriters and their children is just fine.

The deceptive premises of the NYTimes Editorial “Keep the Internet Free of Borders” 8/10, begin with the title, which leads one to believe that this ITC case will take something away that actually exists. In fact, the Internet is not now and has never been, “free of borders”. Copyright law prohibits unlawful distribution of copyrighted works outside national borders and has strict provisions on import and export of copyrighted works. The Internet has never been free of copyright law, because copyright is nation-based. That’s why a new treaty was adopted to address the cross-border issue of distribution of works for blind and reading impaired persons- the Marrakesh Treaty adopted in 2012-, and why a global treaty for libraries is now under discussion: to make cross-border distribution legal in certain cases, precisely because right now it’s restricted. Even Google knows that the Internet has national borders. It found a way to respect them for Google Books- a mechanism to prevent export of copyrighted works to other countries. There are patent rules too. All universities have policies regarding import and export of patented material. Export control rules and guidelines already cover patented material/trade competition and have NEVER been restricted to physical goods.

When the editorial extrapolates its argument to the record industry, it goes even further afield. ” The I.T.C. has long had the power to forbid companies from importing physical goods like electronics, books and mechanical equipment that violate the patents, copyrights and trademarks of American businesses…The commission’s order to ClearCorrect was the first time it had sought to bar the transfer of digital information.”

The Times takes the RIAA to task for supporting the decision: “Groups like the…Recording Industry Association of America are supporting the commission’s view… that, as trade increasingly becomes digital, the definition of “article” should include data.”

Yet when there was actually legislation on the table supporting the alternative remedies to ITC intervention that the editorial now claims to favor, the NY Times took the exact opposite position ( Beyond SOPA 1/28/12), and supported empowering the ITC: “By giving the International Trade Commission sole authority to determine infringement, [the OPEN Act] would…[give] copyright holders powerful new tools to protect themselves [while] protecting legitimate expression on the Web from overzealous content owners.

Funny how ‘Times’ change.

In any case, the alternate remedies proposed in last weeks editorial simply don’t apply to recording artists works. “There are far better ways to [protect…patents and copyrights]….Align could sue ClearCorrect and seek damages for patent infringement. Or the company could ask a judge to order ClearCorrect to stop selling products made using the information contained in the files.”

Sounds great: but asking a judge to order an infringing company to stop selling [physical] products made using information contained in infringing files’ isn’t relevant for people whose product is the files themselves. And of course, suing companies profiting from infringement is precisely what musicians can’t do, thanks to the Safe Harbor Clause of the DMCA. That clause exempts online businesses from the normal responsibility of companies for violations of the law occurring on their premises.

Is the NY Times now going to support ending Safe Harbor protection for companies whose business models are based on aiding, abetting, and profiting from infringement? Such a position would be the only way musicians could have access to its suggested remedy.

We certainly hope so, because while congress has failed to effectively regulate the unfair black market destroying the value of our work, our industry has crashed and our livelihoods are suffering.

Our problem isn’t new technology itself, but the failure of government to regulate new and unfair forms of exploitation. The internet has borders: it is bound internationally by the laws of sovereign nations, and internally by laws which protect the rights of citizens. It also has hugely powerful corporations attempting to violate those borders on a massive scale in order to create consumer ‘facts on the ground’ which render those rights politically un-enforceable.

International borders aren’t the only boundaries threatened by big tech’s drive to profit from infringement: the consequences of the failure of government to stand up to this corporate manipulation won’t stay neatly contained within the music industry. Nor will the effective nullification of citizens rights stop at those protecting artists. Its a slippery slope, baby.

We’ve been hearing from a number of our artist friends who are getting more proactive about using the DMCA to manage their work on YouTube. They are reporting that there appear to be more account terminations on YouTube in recent months. This would appear to be happening due to a number of factors, not the least of which is that artists, songwriters and creators are finally becoming aware of just how damaging “User Pirated Content” on YouTube really is to their careers.

Readers will note that the account in the screen shot above was terminated due to “multiple third-party claims“. That means the YouTube user is indiscriminately uploading multiple works by multiple parties. Unfortunately this appears to be a very common case with many users.

This is a serial infringer – it is not someone “just sharing their cute cat video.” There are literally thousands upon thousands of YouTube channels that are nothing more than infringement farms where artists get paid a pittance, if anything at all.

YouTube user accounts are subject to a three strikes rule. Yup, that’s it, three strikes – and now it appears more parties than ever before are starting to exert their rights via the DMCA and are sending notices to remove infringing works on the video streaming site.

This is how users, and the general public at large learn about copyright infringement. When an account is terminated the YouTube user is learning about copyright and artists rights. Those users should be directed to the artists YouTube channel where the artist themselves have chosen what material to share and promote.

Some have noted receiving direct emails from the users whose accounts are being terminated stating that the user knew they did not have the permission to upload the infringing content, but are doing so without profit motive. As much as we can appreciate that sentiment by the users, this is not the case for YouTube and Google who profit from a business built on “User Pirated Content” which attracts one of the largest online audiences in the world (thanks to our work!), and is monetized with advertising.

Because an account termination is the result of multiple copyright claims, Google & YouTube seem to forgo the attempted public shaming of rights holders that commonly appears when a video is individually removed.

There could be a few more reasons why there are more DMCA take downs and a rise in account terminations.

First, artists are figuring out that $375 per million views when monetizing “User Pirated Content” is a really, really, really bad deal via Content ID. These collections are generally through a third party taking a percentage of that money like Audiam (25%) or AdRev (15%) as well as Tunecore and CDBaby amongst other aggregators who are also now offering this service. But no matter how you slice it, $375 per million views is just a really bad deal.

Here’s what front line YouTube (artist channel uploads) and Spotify plays look like per million views by comparison, and you can see more [here]:

And last but not least, the record industry is once again slow to get out the calculators, but when they do at least they take notice. Last year we reported on several posts during SXSW that highlighted the disparity between market share and revenue noting how much lower streaming payments were from YouTube versus Spotify (and others). Using only a limited data set we concluded that making music available on YouTube is the least profitable way for artists and rights holders to monetize their works.

Digital Music News recently posted a simple info graphic that highlights the problem as simple as it can possibly be detailing that YouTube accounts for 52% of all streams served but only 13.5% of revenues. Bad Deal. See the infographic / chart [here].

Let us be clear, that when users upload infringing material to YouTube containing our works without a license it is because of a business model that uses the DMCA to avoid responsibility for that infringement. Further more, these are not issues of Fair Use as some might like to suggest. The very fact that YouTube is a global commercial business who profits from publicly distributing “User Pirated Content” largely negates many (if not most) arguments for Fair Use.

Responsibly run services such as Vimeo (we believe Vimeo are responsibly run) have made a business by being the indie filmmakers destination for distributing their works, legally and licensed. Vimeo also has a simple and effective password protection function for non-public distribution of works intended for personal use amongst friends, family and small groups for educational purposes. This is not the case with YouTube, but it should be.

No matter how many notices can be sent, or the standardization and efficiency in doing so, the volume of infringement far exceeds any rational ability to combat the flood of infringement.

The only logical solution is to fix the DMCA whereby when a valid notice is sent and complied with, that the infringing content can not be re-uploaded again, and again and again as we detailed in our post “The DMCA Is Broken.”

These videos below illustrate the issue, both present testimony from the Congressional hearing on March 13, 2014.

We’d also like to thank Congresswoman Judy Chu for acknowledging and entering into congressional record our post by Chris Castle on how to address these issues with the DMCA. Video below.

Written in 1998, with the intent of protecting both copyright holders and website owners, the Digital Millennium Copyright Act, quickly became a devastating problem for copyright holders. Not coincidentally, barely a year later, in 1999, Shawn Fanning launched Napster, marking the beginning of online piracy and over a decade of artist abuse.

Now, fifteen years later, most pirate sites are still operating under the protection provided by the DMCA’s Safe Harbor; a loop-hole that has enabled pirate sites to thrive in a quasi-legal gray area. A safe harbor from which online pirates claim compliance by engaging in what is commonly referred to as whack-a-mole, a process where infringing sites comply with take down notices by taking down the infringing content only to have the same content reposted almost immediately from another source.

The proposed change referred to as Stay Down strives to eliminate the safe harbor loop-hole. Copyright holders and administrators, while still responsible for policing their work, are only responsible for notifying a website operator one time. Once that is accomplished, the hosting site is now responsible for blocking the infringing content. A process that can be managed by software programs. If a service provider fails to comply they are in violation of the law.